Citation Nr: 22018651 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 09-13 412 DATE: March 30, 2022 REMANDED Entitlement to service connection for a right hip disability, to include myofascial pain syndrome and degenerative joint disease, as secondary to service-connected disabilities of the lower extremities via aggravation is remanded. Entitlement to service connection for a left hip disability, to include myofascial pain syndrome and degenerative joint disease, as secondary to service-connected disabilities of the lower extremities via aggravation is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to September 1969 and from March 1970 to March 1978. The Veteran died in March 2017. The appellant is the Veteran's surviving spouse. In August 2017, a Department of Veterans Affairs (VA) regional office (RO) granted the appellant's motion for substitution. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a VA RO. In July 2011, the Veteran and the appellant testified at a videoconference hearing held before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing has been associated with the electronic claims file. In a January 2022 letter, the Board informed the appellant that she has a right to another Board hearing. In February 2022, the appellant indicated that she did not want another hearing. As such, no further development with regard to another Board hearing is necessary. In November 2011 and January 2014, the Board remanded the claims for further development. In March 2016, the Board denied the claims. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (the Court). In an April 2017 memorandum decision, the Court vacated the Board's decision and remanded the matter for further development and readjudication. In its memorandum decision, the Court noted the Veteran raised no arguments with respect to entitlement to benefits for his bilateral hip disabilities on a direct basis or on the basis that they may be caused by his service-connected disabilities. Memorandum decision, page 5. The Court deemed any appeal of those matters abandoned. Id. Therefore, the issues on appeal are limited to one theory of entitlement secondary service connection on the basis of aggravation. In July 2018 and May 2019, the Board obtained medical opinions from experts in the Veterans Health Administration (VHA). In September 2019, the Board remanded the claims for further development. In December 2020, the Board denied the claims. The appellant appealed to the denials to the Court. In October 2021, the Court granted a September 2021 joint motion for remand that vacated the Board decision and remanded the matters for readjudication. The Veteran filed his claim for service connection for bilateral hip disabilities in May 2007. A January 2008 VA examination report reveals a diagnosis of bilateral myofascial pain syndrome of the hips. X-rays of the hips were normal at that time. A March 2010 VA examination report reflects a diagnosis of bilateral degenerative joint disease of the hips. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In light of the above, the issues on appeal include both myofascial pain syndrome and degenerative joint disease. The September 2021 joint motion found that a December 2019 VA medical opinion addressing degenerative joint disease did not provide an adequate rationale taking the Veteran's specific situation into account and that remand is warranted for a new medical opinion that provides a rationale that allows for a fully informed decision. September 2021 joint motion for remand, page 2. Therefore, another medical opinion is necessary. A medical opinion is also necessary to address whether the bilateral myofascial pain syndrome of the hips diagnosed during the January 2008 VA examination was aggravated by the service-connected disabilities of the lower extremities. In a November 2011 VA medical opinion addressing direct service connection and secondary service connection via causation, a Dr. F. noted that the medical literature supports the conclusion that there is moderate evidence for a positive influence of obesity on the development of hip osteoarthritis. In a March 2014 VA medical opinion addressing aggravation, a Dr. O. stated the same thing about obesity and hip osteoarthritis. Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). The VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 at 1. Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court held that the General Counsel Precedent Opinion 1-2017, not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310 (2021). Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). As such, the medical opinion has to address obesity as an intermediate step between the hip disabilities and the service-connected disabilities of the lower extremities via aggravation. A March 2013 VA examination report reflects that the Veteran had an abnormal gait due to an in-service landmine injury, back pain, knee pain, and ankle pain. The Veteran was service-connected for ankle and knee disabilities. Thus, the medical opinion should address altered gait due to the service-connected disabilities of the lower extremities. In its April 2017 memorandum decision, the Court stated that the medical opinion addressing aggravation should be rendered by someone who does not have access to the opinions of Drs. O. and F. Memorandum decision, page 7. In its September 2019 remand, the Board directed that the clinician who would render the medical opinion to not review the prior VA medical opinions rendered by Drs. O. and F. that are dated in March 2010, November 2011, and February 2014. The clinician who will be rendering the opinion pursuant to this remand should also be asked not to review the prior VA medical opinions rendered by Drs. O. and F. that are dated in March 2010, November 2011, and February 2014. The Veteran reported that he received treatment at the Lexington VA Medical Center. The RO last obtained records from that facility in April 2015. The electronic claims file shows that the Veteran had been hospitalized at the facility multiple times between April 2015 and March 2017. The RO should obtain the Veteran's treatment records from that facility for the period from April 2015 to March 2017. The matters are REMANDED for the following action: 1. Ask the appellant to identify all treatment for the Veteran's hip disabilities, knee disabilities, ankle disabilities, peripheral neuropathy of the lower extremities, scars of the legs, and obesity. Obtain any identified records. Obtain the Veteran's VA treatment records from the Lexington VA Medical Center for the period from April 2015 to March 2017. 2. After the development in 1 is completed, the RO should arrange for the Veteran's electronic claims file to be reviewed by the VA clinician who prepared the December 2019 medical opinion for the preparation of an addendum addressing the nature and etiology of the bilateral hip disabilities. If that clinician is unavailable, arrange for the claims file to be reviewed by another medical professional. Pursuant to the Court's instructions, the clinician is specifically asked to not review the prior VA medical opinions by Drs. O. and F. as to these claims that are dated in March 2010, November 2011, and February 2014. For the bilateral myofascial pain syndrome of the hips diagnosed at the January 2008 VA examination, the clinician must opine on whether it is at least as likely as not that myofascial pain syndrome in either hip was aggravated by the service-connected injury of the right sciatic nerve with peripheral neuropathy, the degenerative joint disease of the right knee, the residuals of an arthrotomy of the left knee, bilateral degenerative joint disease of the ankles, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, and bilateral scars of the legs, to include any altered gait caused by these service-connected disabilities. If the clinician finds that myofascial pain syndrome in either hip was aggravated by the service-connected injury of the right sciatic nerve with peripheral neuropathy, the degenerative joint disease of the right knee, the residuals of an arthrotomy of the left knee, bilateral degenerative joint disease of the ankles, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, and bilateral scars of the legs, to include any altered gait caused by these service-connected disabilities, then the medical professional should quantify the degree of aggravation. For the bilateral degenerative joint disease of the hips, the clinician must opine on whether it is at least as likely as not that degenerative joint disease in either hip was aggravated by the service-connected injury of the right sciatic nerve with peripheral neuropathy, the degenerative joint disease of the right knee, the residuals of an arthrotomy of the left knee, bilateral degenerative joint disease of the ankles, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, or bilateral scars of the legs, to include any altered gait caused by these service-connected disabilities. If the clinician finds that degenerative joint disease in either hip was aggravated by the service-connected injury of the right sciatic nerve with peripheral neuropathy, the degenerative joint disease of the right knee, the residuals of an arthrotomy of the left knee, bilateral degenerative joint disease of the ankles, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, or bilateral scars of the legs, to include any altered gait caused by these service-connected disabilities, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the obesity was aggravated by the service-connected injury of the right sciatic nerve with peripheral neuropathy, the degenerative joint disease of the right knee, the residuals of an arthrotomy of the left knee, bilateral degenerative joint disease of the ankles, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, or bilateral scars of the legs. If the clinician finds that the obesity was aggravated by a service-connected disability of the lower extremities, the clinician should opine as to whether it is at least as likely as not that the aggravation of the obesity by the service-connected disability of the lower extremities was a substantial factor in causing myofascial pain syndrome in either hip. If the clinician finds that the aggravation of the obesity by a service-connected disability of the lower extremities was a substantial factor in causing myofascial pain syndrome in either hip, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have had the myofascial pain syndrome in either hip but for the obesity aggravated by the service-connected disability. If the clinician finds that the obesity was aggravated by a service-connected disability, the clinician should opine as to whether it is at least as likely as not that the aggravation of the obesity by the service-connected disability was a substantial factor in causing degenerative joint disease in either hip. If the clinician finds that the aggravation of the obesity by a service-connected disability was a substantial factor in causing degenerative joint disease in either hip, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have had degenerative joint disease in either hip but for the obesity aggravated by the service-connected disability. 3. Thereafter, the AOJ should readjudicate the appellant's claims. If any claim remains denied, the appellant should be issued a supplemental statement of the case, with a copy to her representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.